A copyright owner may serve a subpoena on a service provider seeking the identity of a customer alleged to be infringing the owner's copyright. The subpoena is issued by the clerk of any United States District Court upon a request by the copyright owner (or one authorized to act on the owner's behalf) containing

the proposed subpoena,

'a copy of a notification described in subsection (c)(3)(A),' and

a sworn declaration ensuring that the subpoena is solely to obtain the identity of the alleged infringer, which information will be used only to protect rights to the copyright.

The service provider, upon receipt of the subpoena, 'shall expeditiously disclose' the information required by the subpoena to the copyright owner (or authorized person). [17 U.S.C. § 512(h)] [Verizon DC].

Seems simple enough? But no! What is meant by “notification described in subsection (c)(3)(A)”? This reference is to the notice and take down provisions of the DMCA where the service provider is storing the content. The notification requirement is described above. Notably, the notification must provide

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

[17 U.S.C. § 512(c)(3)(C)(A)(iii)]. Implicit in this notification requirement is that the content in question must be on the service provider’s network in order for it to remove or disable access to it. If it is not, then the copyright owner cannot possibly provide “a copy of a notification described in subsection (c)(3)(A).”

Case in point: The Recording Industry Association of America (RIAA) has gone on the copyright offensive, carpet bombing ISPs with subpoenas asking them to narc on subscribers. Verizon, the Bell telephone company in the east, took offense and declined to weasel. In this controversy, the lower court sided with the RIAA, concluding that the subpoena language is not necessarily connected to the ISP-as-content-holder provisions. [Verizon DC] The Appellate Court disagreed, concluding that the copyright holder could not possibly tell the ISP the content to be removed if the content is not on the ISP’s system.

We conclude from both the terms of § 512(h) and the overall structure of § 512 that, as Verizon contends, a subpoena may be issued only to an ISP engaged in storing on its servers material that is infringing or the subject of infringing activity… No matter what information the copyright owner may provider, the ISP can neither “remove” nor “disable access to” the infringing material because that material is not stored on the ISP’s servers.

If you reside in the jurisdiction of the DC Circuit, then copyright owners can only utilize subpoenas when the content resides on that ISP’s computers.

If you are not in the jurisdiction of the DC Circuit, then the law in your jurisdiction is not clear. Prior to the Verizon case, people had been acting like subpoenas could be served regardless of content storage.

This issue is in flux. The depth of the conversation is not yet covered here and the law is changing. So send us an email on the latest legal developments that you have found!

Law

17 U.S.C. § 512(h)

Statutory Language
(h) SUBPOENA TO IDENTIFY INFRINGER.—
(1) REQUEST.—A copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.
(2) CONTENTS OF REQUEST.—The request may be made by filing with the clerk—

(A) a copy of a notification described in subsection (c)(3)(A);
(B) a proposed subpoena; and
(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.

(3) CONTENTS OF SUBPOENA.—The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the
notification to the extent such information is available to the service provider.
(4) BASIS FOR GRANTING SUBPOENA.—If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.
(5) ACTIONS OF SERVICE PROVIDER RECEIVING SUBPOENA.—
Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.
(6) RULES APPLICABLE TO SUBPOENA.—Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.

Caselaw

"The district court rejected Verizon’s statutory and constitutional challenges to § 512(h) and ordered the internet service provider (ISP) to disclose to the RIAA the names of the two subscribers. On appeal Verizon presents three alternative arguments for reversing the orders of the district court: (1) § 512(h) does not authorize the issuance of a subpoena to an ISP acting solely as a conduit for communications the content of which is determined by others ... Because we agree with Verizon’s interpretation of the statute, we reverse the orders of the district court enforcing the subpoenas..."

In this case, Verizon challenged an RIAA subpoena. RIAA was seeking the identity of a Verizon subscriber who had apparently downloaded 600 pirated songs in a single day. Verizon argued that (1) section 512(h) says that the notice must comply with 512(c)(3)(A), which deals with a networks subscriber uploading content to that network, (2) this case does not involve a Verizon subscriber who uploaded content to Verizon.net but instead downloaded content from third party sites, (3) therefore the 512(h) subpoena power does not extend to these types of situations. The Court disagreed, finding that while 512(h) referenced the notice requirements of 512(c)(3)(A), it in no way limited the reach of the subpoena power. Instead, on its face, 512(h) lets the copyright owner get information on anyone they thing might be doing naughty copyright things.